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SUBMISSION OF DAVID FARRAR ON THE NEW ZEALAND FLAG REFERENDUMS BILL TO THE JUSTICE AND ELECTORAL COMMITTEE

About the Submitter

This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

The overall Bill

I support the bill, without amendment.

Order of Referendums

Some groups and people have advocated that the first referendum should include a question on whether voters wish to change the flag, and if there is not a majority, there is no second referendum.

I oppose such a move. It could result in no vote occurring on an alternative design, even though a majority would vote for the alternative design.

Such a change could deny a design supported by a majority of voters, being voted on.

It is quite possible a large number of voters could vote at the first referendum that they do not want change, yet could be persuaded that the alternate design is preferable to the current design and vote for it, even though they did not have a problem with the current design. There is a difference between finding the current design acceptable, and saying that no other design could be better.

A flag is not an electoral system. A flag is simply a design, and the most informed way to vote is choosing between the current design and an alternative design.

An electoral system can produce outcomes such as a disproportional Parliament, a lack of women, a majority Government which allows voters to decide they want change, regardless of the alternative. But a vote on a flag makes no sense without knowing the alternative.

Method of Voting

I am disappointed that only overseas based voters will be allowed to return their votes via the Internet. There is no sound public policy reasons that voters in NZ should not be able to do so also.

Postal voting is a dying method of voting. Restricting the referendum for those in NZ to postal voting is likely to lead to a low turnout, which could undermine the moral legitimacy of any vote.

The turnout for postal referendums in recent times has been declining from 80% in 1997 to 56% in 2009 to 45% in 2013.

While it is probably too late to make the necessary arrangements for this referendum, planning should commence for future referendums as postal referendums will not be viable in the not too distant future. Younger New Zealanders simply have no relationship with a post office.

SUBMISSION OF DAVID FARRAR TO THE
INQUIRY INTO THE 2013 LOCAL AUTHORITY ELECTIONS BY THE JUSTICE AND ELECTORAL SELECT COMMITTEE

About the Submitter

This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

Management of Elections

I submitted to the 2010 inquiry that the Government should be asked to look into the pros and cons of making the Electoral Commission responsible for local authority elections.

My views have firmed up since then, and I now strongly believe that it is highly desirable that the Electoral Commission be placed in charge of local authority elections, acting as a legal and organization backstop to local returning officers.

It is inevitable that there would be considerable cost savings from having one entity run the 90+ local elections, than having it done by 67 territorial authorities. The extra cost to the Electoral Commission could be funded by a levy on local bodies proportional to their population. This would save ratepayers money overall.

The more important reason to place the Electoral Commission in charge is integrity and consistency of electoral law. 67 different returning officers may make many different rulings on how they interpret the Act. They have no ability to deal with complaints on law breaches short of referring them to the Police who have shown little interest in such things. Having the Electoral Commission in charge would mean consistency rules and decisions, and specialized legal resource that can be used to decide which alleged breaches should go to the Police.

The other important issue is that local returning officers are generally staff members of their local Councils. They spend 33 out of 36 months having to work with Councillors in a “subservient” relationship and then three months as the arbiter of the election. That place them in an invidious position where they can damage their long-term working relationship by unfavourable interpretation to Councillors who are candidates.

This problem is not just theoretical. I have spoken to a number of Mayors who have told me their returning officers have been bullied by Councillors who are candidates, and the results are confusing and inconsistent rulings which aim to appease a Councillor who can make their job difficult outside election time.

I discussed the issue of having the Electoral Commission responsible for local authority elections with a conference of re-elected Mayors at a LGNZ conference. While there was no formal vote, there seemed to be very strong support from most Mayors there for having the Electoral Commission in charge of local authority elections. I think such a move would gain support from most local authorities, and even many local returning officers.

With possible use of e-voting in the future, it makes even more sense to consider a central authority for local elections.

A further advantage to having a central authority is that election results could be displayed on one central website, rather than the 67 different sites currently out there.

A final point in favour of having the Electoral Commission in charge is it would make it easier for those on the unpublished roll to vote in local elections. I found out from one Mayor that if someone is on the unpublished rolls, then they do not get posted voting papers as the Electoral Commission isn’t authorized to share unpublished roll details with local authorities. That means those on the unpublished roll (such as domestic abuse victims, police officers) have to ring up, get authenticated and have a special set of ballot papers sent to them. Of course very few go to such lengths. If the Electoral Commission had overall authority they could post out ballot papers directly to those on the unpublished roll.

More informed voting

I propose that ballot papers be required to be in random order so that no candidate gets an advantage based on their surname. There is considerable research showing ballot order affects votes, and we saw some candidates changing surnames in order to try and game the system.

I also believe people would make better decisions (and have higher turnout) if there were fewer candidates to choose from or rank. A law change directing the Local Government Commission to implement single member wards (as Parliament has), unless there are strong reasons not to, would be beneficial.

E-Voting

I’m pleased to see progress has been made on this issue since I submitted on it in 2011, and that the Government plans to trial this no later than 2016.

An option to vote electronically is just that – an option. It is not proposed that it replaces postal voting –just to complement it. It will not be a silver bullet for low voting turnout, but it should make some impact as it makes it easier for those who want to vote, to do so.

Thank you for considering this submission. I would like to make an oral submission in support, and look forward to appearing.

SUBMISSION OF DAVID FARRAR ON THE
MARRIAGE (DEFINITION OF MARRIAGE) AMENDMENT BILL TO THE GOVERNMENT ADMINISTRATION SELECT COMMITTEE

About the Submitter

This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

While not a detail I would normally include in a submission, I am heterosexual, so have no self-interest in this bill.

Overall Bill

I submit in support of the bill proceeding. To quote Dr Paul Hutchison, “I simply cannot construct a strong enough intellectual moral health or even spiritual argument against it … and the reverse is very much the case.” This bill will allow a couple of the same sex to marry each other, which I believe to be good for the couple, good for the institution of marriage, and good for New Zealand. I do support some amendments being made to clarify the impact of this bill on other Acts of Parliament

Equality

A same sex couple is of course different to a couple of the opposition gender. But this doesn’t mean that the law should discriminate in not allowing same sex couples to marry. Same sex couples fall in love, commit to each other, form households and raise children – the core of being a family. The law should allow such couples to marry. Why would we want an adult couple desiring marriage to not be able to marry?

Some argue that as a same sex couple can’t produce children naturally, that they should be ineligible to marry. I do not accept this argument as many married couples are infertile, choose not to have children, or have children from past relationships. We don’t ban woman who have reached menopause from marrying, and now should we ban same sex couples.

Strengthening Marriage

I think marriage is a wonderful institution, and the benefits of marriage are well documented. I believe allowing a same sex couple to marry, hence committing to each other for life, strengthens the institution of marriage.

I would like to quote three conservative leaders as to why same sex marriage is good for marriage. US Solictor-General (for George W Bush) Theordore Olsen has said “Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize.Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one’s own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society.

The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.”

and“I understand, but reject, certain religious teachings that denounce homosexuality as morally wrong, illegitimate, or unnatural; and I take strong exception to those who argue that same-sex relationships should be discouraged by society and law. Science has taught us, even if history has not, that gays and lesbians do not choose to be homosexual any more than the rest of us choose to be heterosexual.

To a very large extent, these characteristics are immutable, like being left-handed. And, while our Constitution guarantees the freedom to exercise our individual religious convictions, it equally prohibits us from forcing our beliefs on others. I do not believe that our society can ever live up to the promise of equality, and the fundamental rights to life, liberty, and the pursuit of happiness, until we stop invidious discrimination on the basis of sexual orientation.

UK Conservative PM David Cameron: “But for me, leadership on families also means speaking out on marriage. Marriage is not just a piece of paper. It pulls couples together through the ebb and flow of life. It gives children stability. And it says powerful things about what we should value. So yes, we will recognise marriage in the tax system.
But we’re also doing something else. I once stood before a Conservative conference and said it shouldn’t matter whether commitment was between a man and a woman, a woman and a woman, or a man and another man. You applauded me for that. Five years on, we’re consulting on legalising gay marriage.And to anyone who has reservations, I say: Yes, it’s about equality, but it’s also about something else: commitment. Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.

Former Australian Liberal Party Leader Malcolm Turnbull said “Families are the foundation of our society and I am firmly of the view that that we would be a stronger society if more people were married – and by that I mean formally, legally married – and fewer were divorced. …And I have to say that I am utterly unpersuaded by the proposition that my marriage to Lucy, or indeed any marriage, is undermined by two gay men or two lesbians setting up house down the road – whether it is called a marriage or not.

Regrettably, this aspect of the debate is dripping with the worst sort of hypocrisy, and the deepest pools are all too often found among the most sanctimonious.
Let us be honest with each other. The threat to marriage is not the gays. It is a lack of loving commitment – whether it is found in the form of neglect, indifference, cruelty or adultery, to name just a few manifestations of the loveless desert in which too many marriages come to grief.”

I agree with Messrs. Cameron, Turnbull and Olsen that allowing same sex couples to marry will strengthen the institution of marriage.

Welcoming diversity

Adolescence is a difficult time for many teenagers, and gay/lesbian teenagers especially can find it more challenging than most as they wonder whether there is something “wrong” with them as they are not attracted to the opposite sex like most of their peers are. We see the results of this in the significantly higher levels of suicide amongst gay and lesbian teenagers. The 2007 Auckland University study of around 9,000 secondary school students found 20% of youth attracted to the same (or both) sex attempted suicide in the last year. This is an appallingly high figure.

Knowing that despite their “different” sexual orientation, that one day they can love and marry someone will I think send a very powerful message to young gay and lesbian New Zealanders that there is nothing wrong in being different, and that the Parliament of New Zealand has said so by allowing same sex couples to marry.

Tradition

One argument against allowing same sex couples to marry is that this goes against the traditional definition of marriage.

This is no surprise. Up until 27 years ago, it was a criminal offence for a homosexual man to even have consensual sex with another adult man. So of course there is no recent tradition of same sex marriage.

If we go back far enough to be very traditional, I would point out that In the 1st century AD Emperor Nero is reported to have married a male slave. Later in 342 AD Emperor Constantius II outlawed same sex marriage with a penalty of execution. This suggests that there were a number of same sex marriages prior to that.

Regardless marriage has in fact changed significantly over time. I follow with some examples.

Traditionally the age of marriage was the onset of puberty. In the 12th century European canon law documented by Gratian allowed marriage from the age of seven onwards, and stayed in force religiously until 1918. In 1689 a nine year old Mary Hathaway was married in the US.

Interracial marriage was banned in the US until the California Supreme Court over-turned this in 1948 and then the US Supreme Court in 1967. The ban was not removed from the Alabama state constitution until the year 2000.

Married couples were prohibited from using contraception in the US until 1965.

Traditionally under English common law, a married woman had no legal identity outside that of her husband, until laws started to change in 1839. It wasn’t until 1981 that a married woman in the US had equal property rights with her husband.

I hope these examples show that the nature of marriage, and the eligibility of two people to marry, has changed over time and I think we would all agree for the better. Tradition should not trump equality.

Religious v Civil Marriage

Some people advocate that ideally the state should not decide who can or can’t marry. That marriage is primarily a religious institution, and that the state should merely register civil unions, and allow couples to get a “blessing of marriage” from a religion should they wish to.

I agree that this would be an ideal situation, respecting the origins of marriage as a religious ceremony. If an MP wishes to put up a bill abolishing marriage as a civil institution, then that would be good, and I would advocate for its passage,

However the reality is that marriage is a state institution in pretty much every country on Earth, and that it is unlikely to ever not be a state institution in New Zealand. While it remains a state institution, I believe it would be wrong to deny the institution of marriage to same sex couples.

PM John Key recently said that in politics you don’t start with a blank slate of paper, you start with the real world. In the real world marriage is a state institution, and rejecting same sex marriage on the basis that the state shouldn’t decide at all who can get married is turning a blind eye to the fact that the state does decide, and is likely to always do so.

Amendments

It is unclear to me whether this bill as currently worded would allow a married same sex couple to adopt under the Adoption Act 1955. I note a gay or lesbian individual can currently adopt, but not jointly with their partner.

The definition of adoptive parent in s2 of the Adoption Act refers to a husband and a wife. However in s3(2) it refers to “2 spouses jointly” being able to apply for an adoption order. I suspect a court would have to decide which clause takes precedence, which will mean uncertainty.

To remove uncertainty, I propose that this bill be amended with the addition of a clause stating that a married couple should be treated as eligible to jointly adopt under the Adoption Act. Arguably such a clause could be worded to apply to any other Act which refers to married couples, spouses or husbands and wives.

A benefit of having a specific clause amending the Adoption Act is it would allow MPs to vote explicitly on both the issue of same sex marriage and same sex (as a couple) adoption. I would advocate Parliament votes in favour of both.

Some people have expressed a concern that churches could be forced to marry same sex couples in contravention to their religious beliefs. I agree this is undesirable. I do not regard this as likely, and note neither does the Human Rights Commission. To remove doubt, I recommend an explicit clause be inserted to state no religious body, or minister of religion shall be required to perform a marriage ceremony in violation of their religious beliefs, nor provide facilities for such a ceremony unless that facility is available to the general public.

Another concern is that it is an offence under s56 of the Marriage Act to allege that “any persons lawfully married are not truly and sufficiently married” and that this could capture someone saying that a same sex marriage is not in the eyes of their religion a “true” marriage. I recommend the select committee look at amending or repealing s56 to minimize this perceived risk. I note there has never been a prosecution (it appears) under s56, and other laws such as defamation may be sufficient to repeal it safely.

Thank you for considering this submission. I would like to make an oral submission in support, and look forward to appearing.

SUBMISSION OF DAVID FARRAR ON THE
LOBBYING DISCLOSURE BILL TO THE GOVERNMENT ADMINISTRATION SELECT COMMITTEE

About the Submitter

This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

I frequently communicate with MPs and staff on political, policy and legislative issues. The views expressed are always my own, yet under this legislation in some circumstances I would face large fines unless I I filed a return listing every tweet, e-mail, text message, oral conversation I have with an MP or staff member or a political issue. This would even apply to if an MP asks me for my view on an issue in passing at say a social function or Koru Club.

I chair the Policy Advisory Group of InternetNZ, and get paid a small fee ($1,000 a month) for chairing the group, and working with staff on Internet policy issues. Under the proposed legislation, this would make me a paid lobbyist. I do not regard myself as that, as I only advocate for what I personally believe in, and am not paid to advocate the views of InternetNZ. However the definition in the proposed law would define me as a paid lobbyist.

Background to Bill

This bill seems to be based on a genuine desire to avoid lobbying practices of the type seen overseas, primarily in the United States. I share that desire.

It is important to understand how massively different lobbying in the United States is, compared to New Zealand. In the US lobbying often consists of lobby groups meeting individual representatives and offering them large sums of moneys to help finance their primary or general election campaigns if they vote the desired way on issues. Such funding may often be indirect such as via Political Action Committees or PACs.

Lobbying in New Zealand does not work that way, and due to our laws and culture basically can’t work that way. First of all, political parties tend to vote as a bloc on all but conscience issues. Decisions are taken collectively by a caucus or Cabinet. In the US a political party is more a label, than a formal organization. There is almost no method to impose discipline or expel wayward members. Hence lobbying is about influencing individual members and helping them win elections – the one way they can be “disciplined”.

In New Zealand we have very good transparency requirements around MPs, parties, and money. The Electoral Act requires disclosure of any donation over $1,500 to a candidate of $15,000 to a party. The Register of MPs Pecuniary Interests requires disclosure of any gifts over $500. The Cabinet Manual has similar requirements. Ministers and their staffs disclose under the OIA ridiculously trivial gifts such as tickets to sporting games. So we already have excellent (not perfect) laws and policies in place when it comes to politicians and money.

I also have to say I have never heard of US-style lobbying when an organization or individual has tried to persuade an MP to vote a certain way, because of money which will flow to them. All the lobbying I have ever observed is based on advocacy around what is good for New Zealand, good for a particular affected organization, will a policy actually achieve it aims etc.

So I think we should be very clear that the legal and political framework that exists in New Zealand is critically different to the United States, and this is unlikely to change.

Transparency

Transparency generally is a very good thing in politics. This is why we have the Official Information Act. That is why Parliament meets in open to make laws. We have seen useful extra transparency such as televised sittings of Parliament, online listings of submissions to select committees, disclosure of MPs expenses and the like.

But it is obviously transparency has its limits. Otherwise we would require every MP to have a webcam attached to them that broadcasts video and audio of all their activities. This might make for a very enjoyable reality TV show, but would not be a very good system of Government.

Beyond the Official Information Act, there is no obligation for disclosure of what is discussed at caucus meetings, at cabinet meetings, at select committee meetings when considering legislation amendments, of meetings between MPs and staff, of meetings of political party governing bodies and policy committees, of cross-party parliamentary meetings, of the business committee of Parliament etc etc. These are all very important and powerful forums and discussions.

Transparency is focused on the actual decisions taken by MPs and parties, whom the public holds accountable for them. They are judged by voters based on how they vote, not whom they met with.

As the Attorney-General has pointed out the proposed law, as currently worded, would massively discourage people from communicating with MPs on political issues – with a risk of large fines if they do. I generally believe we want to encourage more people to communicate with MPs on political issues, not discourage them.

I also note that such legislation often has unforeseen consequences. The history of electoral finance legislation in the United States is that the more regulations they impose (and the US is much more heavily regulated than NZ), the more it deters “Joe Average” from involvement, but those determined to be involved just fund loopholes such as PACs.

I believe the bill, in its current form, would be extremely detrimental to New Zealand democracy.

Defining a Lobbyist

The bill defines a lobbyist as someone who engages, for payment, on behalf of any individual or organization on any legislative, policy, funding or contractual issue with any MP or parliamentary staff member. This can include shareholders, directors, officers, contractors and staff.

Some have suggested that unions be exempted from definition as a lobbyist. I oppose that. It would be very uneven if only business groups lobbying on industrial relations issue had to register and disclose, but unions did not.

Some have said that such a regime should apply to professional lobbying firms only, of which NZ has around half a dozen to a dozen. However all that is likely to do is encourage people not to use those firms, even though it may lead to better outcomes if they do. Organisations would simply use their own staff more.

Others have said that the regime should apply only to businesses, as they are motivated by profit. So for example a mining company would have to disclose its lobbying activity, but Greenpeace would not have to. Again I think this is very unbalanced. NGOs can benefit just as much from political decisions as businesses. Staff for NGOs could have employment agreements where they get bonuses if they achieve certain outcomes. Some NGOs such as unions stand to gain millions of dollars from legislative changes that benefit them. Restricting the definition to companies would be unfair.

Such a restriction is also likely to lead to US style PACs. NGOs could be set up and funded to lobby for outcomes, to avoid having to register as lobbyists. Ironically this bill could then see more US style politics, not less.

If there is to be mandatory registration of lobbyists, then the definition must include NGOs, not just businesses.

However I would argue there is an alternative to mandatory registration, and that is a voluntary registration system, without fear of prosecutions and fines if you get it wrong.

It should be noted that we don’t really have a great current problem with transparency of who represents who. If a Telecom staff member meets with MPs, it is clear they are representing Telecom. Likewise when Greenpeace meets with MPs, you know they are Greenpeace. You do not need a register to tell you this. With professional lobbying firms, the argument is you may not know whom they represent when they advocate on an issue. In my experience no lobbying firm has ever advocated on an issue in their own right. They have always stated to MPs and staff which client they represent. Many list them on their website in fact.

So bearing in mind there is no defined current problem with practice, it seems overkill to go all the way to a mandatory registration system with large fines for non-compliance. I would advocate a halfway house.

I propose that as an alternative, a register of lobbyists be set up by the Office of the Speaker and/or the Clerk of the House. Allow organisations and individuals who self-identify as lobbyists to register on it. They could be asked to list their clients, the policy areas of interest to them, and any specific bills they are interested in. This list could be published on the parliamentary website. You could even give an asterisk to those with swipe cards!

As an individual who has a certain degree of experience in lobbying MPs, I would have no problem with going onto a register, both in areas where I do have a financial tie (Internet issues) and those where I have no financial interest (Keep It 18 campaign and Marriage Equality). What I don’t want though is to be risking prosecution and fines. As it happens, I tend to disclose prominently on my blog the issues I take an interest in, and groups I am involved in.

Some may say with no risk of prosecution and fines, such a register would be toothless. I disagree. I think the power of public pressure can be considerable. If prominent individuals or organisations did not register, the media and others could well highlight this to their disadvantage.

An organization that generally is not involved in the parliamentary process such as say the Red Cross shouldn’t feel a need to register just because they may chat about aid issues occasionally to their local MP. But a more political organization such as say Greenpeace would be expected. But rather than scare groups such as Red Cross off with risk of fines, just have an opt in self-recognition system. Have some trust in the public, the media, and even new media to expose any blatant cases of groups not registered who should be. This is preferable to trying to reach a definition of lobbyist that isn’t either unfairly exclusive or so inclusive it deters communications with MPs.

Defining Communications

Defining what counts as a lobbying communication is also very problematic,

The current definition of effectively all communications on a political or policy issues would cover tweets, e-mails, informal chats at functions, letters, formal meetings, phone calls, text messages.

Unlike some countries, our MPs engage all the time with many New Zealanders – including those who may be considered a “lobbyist”. This engagement is far more than sit down meetings in Parliament Buildings. MPs attend scores of meetings and functions where people talk to them on political issues

Speaking personally, I talk to and engage with a number of MPs (from many parties) many times a week. Often we chat socially Sometimes we discuss current events. Sometimes we discuss legislation and policy. The thought that I have to disclose every single discussion I have with MPs (let alone parliamentary staffers) on say Internet related issues (as I am technically a lobbyist for InternetNZ, as this bill is defined) is horrifying. It would be like working for one of those awful law firms where you have to account for every six minutes of your time.

You could restrict the law to be face to face meetings in Parliament only. But then you’ll provide incentives for those not wanting their every discussion with an MP disclosed to avoid face to face meetings and use other mediums.

How do you draw a line where an e-mailed communication is counted as lobbying, but a tweet is not? I think it is mission impossible.

I note that Ministers are already obliged to release their ministerial diaries under the OIA, if requested. We already have transparency with Ministers. They can be asked written or oral questions about whom they meet with or talk to, as well as the OIA.

If there is a desire for greater transparency around meetings with opposition MPs and backbench MPs, then that could be achieved by having them release their diaries also by extending the OIA to Parliamentary Service. That nature of diaries is it will tend to capture planned scheduled meetings, but not ad hoc conversations.

The media can also of course ask MPs about any meetings they have had, and there are political consequences related to refusal to answer.

Summary

I propose that it should not be an offence to communicate with MPs if you are an unregistered “lobbyist”. That is too grievous a restriction on freedom of speech.

I propose that the Select Committee recommend that the Speaker and Office of the Clark establish a Register of Lobbyists, as detailed above. It could be given some formality through Standing Orders if necessary.

I propose that the requirement for reporting all communications between lobbyists and MPs be dropped as unworkable.

As an alternative I propose that MPs diaries be made official information under the Official Information Act, as is the case for Ministers. Note this would still allow deletion of sensitive information as defined under the OIA.

Thank you for considering this submission. I would like to make an oral submission also, and look forward to appearing.

SUBMISSION OF DAVID FARRAR ON THE
MEMBERS OF PARLIAMENT (REMUNERATION AND SERVICES) BILL TO THE GOVERNMENT ADMINISTRATION SELECT COMMITTEE

About the Submitter

This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

Overall Bill

I submit in support of the bill proceeding. I think its provisions represent a welcome and overdue reform, especially in regard to having the Remuneration Authority take responsibility for most allowances and services, as well as salaries.

Timing of Salary Determinations

I propose that the bill be amended to legislate that the Remuneration Authority only review MPs salaries every third year, and publish their determination around three to six months before the scheduled election. The new determination should take effect for the term of the next Parliament.

I submit this, not because I think MPs are overpaid and should be paid less. Quite the opposite. I think it is important that MPs continue to receive appropriate remuneration. However the current system of annual increases creates a regular self-flagellation exercise as media and members of the public lash “greedy” MPs voting themselves a payrise (even though that is an inaccurate description of the process), and pressure is put on MPs to turn down the payrise, and/or donate it to charity.

The public will never like MPs getting payrises during their term of office. However they will accept that the salary for one term of Parliament will be higher than the previous three year term. In the days of high inflation, there may have been a case for annual payrises, but in today’s environment a three yearly adjustment should still not be too large an increase.

They key thing is that no MP gains a payrise during their term office. The salary level for an MP is set prior to the election at which they are elected, and stays for that term. So the public know when electing MPs what the remuneration for the job will be – and candidates will know what the salary is they are elected.

I would expect that the Remuneration Authority, if making a determination for a three year term, would take into account the fact it is for three years.

I think this proposal is a win-win. It gives greater certainty to MPs, removes the annual flagellation around payrises, and still ensures that MPs salaries are set at the appropriate level over time.

The formal amendment would be the addition of a Clause 9(5) which says “The Remuneration Authority will make a determination under Subsection (1) no later than 30 September in the year of a scheduled election, and the determination will remain in force for the duration of the next Parliament as detailed in Section 11.

It could be prudent to have a clause detailing what should occur if there is a snap or early election. In this case, one could either have no new determination, or authorize the Remuneration Authority to make a determination prior to polling day.

Deductions for Absent MPs

I support the increase in the deduction for an MP absent without leave from the House.

The deduction is based on sitting days missed. It is worth noting that if the House is in urgency or an extended sitting, then multiple days may be counted as the one sitting day. This means an MP (for example) could attend on a Thursday yet skip a Friday and Saturday extended sitting, yet face no penalty. It may be wise to define a sitting day as any physical day the House of Representatives is sitting, rather than implicitly the definition used by Standing Orders.

I think the deduction could be increased from 0.2% per day missed as with only 96 scheduled sitting days, that means (after deducing the nine days which gain no deduction) that an MP who attended not a single sitting day would only be deducted 17.4% of their annual salary (if an ordinary MP).

I also think the nine “penalty free” days is too high, as this is only for MPs without leave, which is simple to obtain. I would submit a better threshold is three sitting days (one week) before deductions begin, and then deductions of 0.5% per sitting day. This means an MP who did not turn up to a single sitting day in 2012 would have 46.5% of their salary deducted, instead of 17.4%.

Frequency of Determinations for Services

Clause 29 states that determinations for travel and accommodation services under section 18 should be made once per term, in the first two years.

As with MPs salaries, I think it is more logical to have this determination made towards the end of the parliamentary term and apply for the following term. Again this removes the perceptions of MPs gaining some extra “advantage” during a term.

I propose Clause 29 be amended so that determinations are made in the final year of a term of Parliament, and that they apply for the next term of Parliament.

I support retaining 29(4) to allow for emergency amendments if necessary.

Official Information Act status

This bill entrenches the welcome increase in transparency introduced by the current Prime Minister and Speaker over spending by Parliament.

Some people have submitted in favour of going further, and bringing The Parliamentary Service under the Official Information Act.

I can understand the reluctance of some MPs for this to occur, as it could mean that attempts are made to access (for example) internal communications between MPs and staff discussing political strategy and the like. You could end up with each party OIA’ing the communications and documents of all the other parties in Parliament. Draft policy documents could be OIA’d, for example.

A pragmatic solution may be to agree to have the Official Information Act apply to The Parliamentary Service, but only for the purpose of financial documents. This would provide full scrutiny of parliamentary expenditure but protect political discussions and strategy.

Thank you for considering this submission. I would like to make an oral submission in support, and look forward to appearing.

SUBMISSION OF DAVID FARRAR TO THE
INQUIRY INTO THE 2011 GENERAL ELECTION BY THE JUSTICE & ELECTORAL SELECT COMMITTEE

About the Submitter

This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

Maori Roll Enrolment

The Electoral Commission has suggested that the “Maori option” be run not after each census, but in the lead up to each election. I strongly oppose changing the Maori option timing from after each census to before each election.

This would encourage tactical enrolments as if a particular seat (either general or Maori) is seen as marginal, parties will encourage their supporters to swap rolls to try and win the seat. This can happen under the status quo, but would be far more likely when the option to swap is done in an election year.

It would also upset the electoral populations. The option is run after every census, so that it can be used to determine electoral populations and hence boundaries. Allowing people to then swap rolls after the boundaries are set could cause some seats to have extremely low or extremely high electoral populations.

Election Day and Advance Voting Restrictions

The Electoral Commission recommends removal of the polling day exemptions for party lapel badges and ribbons and rosettes in party colours. I agree that rosettes and lapel badges could be banned, but would suggest that party scrutineers be given name badges to indicate they are scrutineers not officials.

However I would not remove the exemption for streamers and balloons in party colours. We do not need to have a balloon or ribbon police.

I also oppose the recommendation to prohibit election advertising within 100 metres of an advance voting place. It is unfair to a party or candidate that may have booked a billboard at a location near an advance voting place, but also is impractical. In theory even newspapers with ads in them would have to be removed within 100 metres of an advance voting place.

The likely growing popularity of advance voting, along with the advent of social media, makes the current laws on election day communications somewhat outdated. I suggest a first principles review is done of what harms these restrictions are designed to prevent (such as undue pressure on people as they are about to vote), and then decisions made on what is a sensible level of regulation to minimize or prevent these harms.

Electronic Voting

I note that it is proposed that some local Councils will trial e-voting for the 2013 local body elections, and then in 2016 possibly have e-voting available for all local body elections. If this is concluded sensibly, then it may be possible to look at an e-voting option for the 2017 or 2020 general election.

As an interim step, I support the Electoral Commission intention to allow overseas voters to deliver their votes to the Electoral Commission over the Internet.

Allocation of List MPs

I agree with the recommendation that the High Court should be able to direct the Electoral Commission to recalculate the allocation of list seats, as a result of a successful electoral petition.

It would also be sensible to allow the High Court to direct the Electoral Commission to recalculate the allocation of list seats as the result of a by-election held immediately after the general election as a result of a candidate dying. This removes the incentive for a party to put up a dying candidate in a “strategic” seat.

Election Returns

I agree that a party or candidate who refuses to file a return should be able to be prosecuted for a corrupt practice. This removes the incentive to file no return rather than a false return.

However I would go in the other direction for late returns, and make this a minor infringement that results in an automatic modest fine (like filing your tax return late). It is silly to involve the Police in such minor issues.

Broadcasting Act

I agree with the Electoral Commission that the definitions of election programmes and election advertisements in competing Acts should be harmonized. My preference would be to remove the electoral broadcasting sections from the Broadcasting Act, and have then in the Electoral Act.

I repeat my earlier submissions than the ban on political parties purchasing their own broadcasting time is outdated and an unjustified restriction of free speech. Worse, it means that different parties have different effective spending limits as a party allocated less broadcasting spend than another, is unable to close that gap.

Role of the Police

I have advocated for over six years that the Police should be removed from their current role of prosecuting electoral breaches. I am pleased to see the Electoral Commission effectively come to the same conclusion.

In 2005 their investigations of electoral law breaches was arguably incompetent. Extremely basic errors in law were made, where they ignored strict liability and confused the difference between spending limits and who can authorize and advertisement.

In both 2008 and 2011 they did not investigate alleged offences in a timely manner. In fact we still do not know their conclusions on offences they were referred to them almost a year ago. I do not blame them for prioritizing other crimes ahead of electoral offences, but it is wrong that there is no timely and effective enforcement of electoral law.

I propose that the Committee recommend to the Government that they agree in principle that the Police be removed as the enforcement agency for electoral law, and that they consult on the preferred replacement model.

Referenda

It seems silly that every time the Government and Parliament wants a referendum they have to pass a special Act of Parliament to hold it, and decide each time what spending and other restrictions are appropriate.

I support the creation of an Electoral Referendum Act that will set out the laws for all future referenda.

The ERA could supersede the CIR Act by specifying the two methods of triggering a referendum are by way of petition (the CIR route) or resolution of the House of Representatives.

Date of Election

The early announcement of the election date was very beneficial both for election administration, and for creating a level playing field for all parties.

Based on this success, I believe it would be beneficial for the date of the general election to be fixed as being the last Saturday in November.

If in future a Government feels it has lost the majority of the House, then it would be incumbent on the House to find a new Government which has its confidence.

Communications from MPs

A number of MPs were referred to the Police for unauthorized election advertisements. As MPs will be aware, the authorization requirements apply over the entire three year election cycle – not just in the regulated period.

It is useful to consider the reason we have authorization statements – to make clear who is behind an advertisement. It is a transparency requirement.

The nature of parliamentary communications is that some of them will always be political in nature and hence possibly an election advertisement. This means MPs at present need to either refer all communications to the Electoral Commission, or stick authorization statements on everything they publish.

I believe that a simple solution would be to amend the Electoral Act to state that outside the regulated period, any publication put out in the name of a Member of Parliament, is deemed to be authorized by that Member of Parliament and does not need a promoter statement.

Minor authorisation breaches

In many cases where there has been a referral to the Police for the lack of a promoter statement, the breach has been technical rather than substantive – the identity of the promoter has still been very clear. I believe this is very different to a case where advertisements are done anonymously in an attempt to hide their promoter.

It would be sensible to allow the Electoral Commission to levy a small infringement fine for minor breaches, rather than require it to be considered in details by a prosecutorial authority, and possibly waste court time.

Donations

The donations regime seems to generally be working well. However it would be a boost to transparency to lower the level at which donations must be disclosed within 10 days from $30,000 to $15,000 – which is the disclosure level for annual returns. This should simplify requirements for political parties, and allow scrutiny of significant donations in a more timely fashion.

Political parties are having to track any donation above $15,000 anyway, so reporting them as they occur should not pose any difficulty. Perhaps the requirement to report within 10 days could be altered to reporting monthly, say by the 20th of each month for the previous month.

It could also be worth requiring near-instant disclosure (say within three working days) for the month before the election. In 2008 two parties received very large donations just before the election and did not disclose them until after the election.

I would also submit that the ability to make anonymous donations through the Electoral Commission should be removed. A donor can donate up to $15,000 a year without public disclosure, which is sufficient for those wishing to donate without publicity. I am skeptical that the identities of those who donate anonymously through the Electoral Commission are a total mystery to the recipient parties. While it is a much more rigorous regime than the Local Electoral Act, it is difficult to have confidence that the identity of the donor is not able to be logically deduced from previous conversations with a party.

Thank you for considering this submission, and I look forward to appearing.

Appeared this morning before the Justice & Electoral Committee (well technically Sub-Committee A of the said Committee) to speak to my submission on the Alcohol Reform Bill which is below. I’ve appeared so often before that Committee, that I’ve now been labelled a groupie

Had around 15 minutes, and thought it was a good discussion. The MPs engaged well and are obviously over the many issues in the bill. Everyone agrees we want less harm from alcohol. The trick is isolating the measures that will do that, and not have consequences which may lead to more harm. Plus also not overly penalising responsible drinkers.

SUBMISSION OF DAVID FARRAR TO THE JUSTICE & ELECTORAL SELECT COMMITTEE ON THE ALCOHOL REFORM BILL

About the Submitter

This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.
Executive Summary

The Government’s alcohol reform bill is an improvement on the status quo. However in some areas it does not go far enough, and in other areas it unfairly penalizes all New Zealanders, rather than more precisely targeting drinkers that cause harm to themselves or others.

In this submission I have mainly focused on the areas where I think change is desirable, rather than list every clause I agree with.

A drinking age

I believe that .the culture of youth drinking will not change unless we have a drinking age, as well as a purchase age. This may not be popular, but I believe it is necessary.

At present it is totally legal for an adult (any adult) to supply a bottle of vodka to a 13 year old. It is only illegal to purchase it with the intent of supply, but it is not illegal to supply it. And intent is very difficult to prove.

The proposed new requirements around supply of alcohol to minors are a good step in the right direction, and are arguably one of the most important parts of the bill. However I do not think they go far enough.

I think parents need to be given assistance and tools in dealing with youth alcohol issues, and a drinking age is one way to do this. It allows parents to say “No it’s illegal to drink at your age”.

Some will argue a drinking age is ineffective and can’t be policed. But by that argument we would not have a legal age for sex either. The idea isn’t to arrest lots of parents and young people for under-age drinking – but to send a clear message about appropriate ages. A comparison could be made to the age at which children can be legally left alone – 14. Now parents do not get arrested because they pop down to the dairy for 30 minutes while leaving a 12 year old at home. But it does mean most parents know that you generally should not leave under 14 year olds unsupervised.

The ages I would propose for a drinking age are:

14 with parental supervision

16 with parental approval and adult supervision

18 otherwise

Effectively this would say that no one under the age of 14 should be drinking alcohol at all, that 14 and 15 year olds can only drink with their parents (a wine with dinner type scenario) and that 16 and 17 year olds can only drink with parental permission and adult supervision (a birthday party supervised by other parents etc)

A breach of the drinking age law should be an offence for the young person involved, as well as for whomever may have supplied the alcohol.

It could be worth considering that only certain types of alcohol (ie not spirits) be legal at the younger ages.

The purchase age

A drinking age will be far more effective in changing the culture of youth drinking than criminalizing 18 and 19 year olds for drinking.

I am aware the purchase age will come to a conscience vote at committee of the whole stage, regardless of decisions by this select committee, so I don’t plan to spend too many words on this issue.

A purchase age of 20 is impossible to justify as a principled position. At 18 one can even be elected to Parliament or a local Council. I note the future MP for Botany was elected to the Manukau City Council at 18 and the Mayor of Porirua was elected to his Council at the age of 19. This bill would give 18 and 19 year old Councillors a major say in local alcohol policies, but make it illegal to purchase a bottle of wine.

The proposed 18/20 split age is better than a 20/20 age, but will seriously undermine the move to make it unacceptable to supply alcohol to under 18 year olds. This is because it will be legal for a 20 year old to supply alcohol to an 18 year old but not to a 17 year old. We want a law which says it is unacceptable to supply alcohol to anyone underage.

Excise Duty/Minimum Prices

I support the level of excise duty being set as a level which will cover the external costs of alcohol consumption.

There is credible research that the current level of excise duty does cover the external costs. There has been other research done which has concluded that the level of excise duty is not high enough. However that research has been shown to be totally flawed, containing the most basic errors such as counting private costs as external costs, yet not counting private benefits. The Government and Parliament should be very wary of decision making on such flawed research.

The current excise regime is not consistent by strength of alcohol. Wine has a much lower excise for its volume of alcohol than other products, for example.

I believe there is merit looking at either revising the excise tax to be less discriminatory or a minimum price scheme based on alcohol volume.

Local Alcohol Policies

I generally support the ability of local communities to set alcohol policies for their area. What is appropriate for Cannons Creek may not be appropriate for Courtney Place.

RTDs

The Government has announced a policy intention of limiting RTDs to 5% strength and 1.5 standard drinks. This is not directly in the bill, but provision has been made to enable the Government to regulate this at a later date.

As a market research company, my company (Curia) was engaged by Independent Liquor (NZ) Ltd to do quantitative and qualitative research on this issue, including the likely impact of any change. This research has been cited in their submission on the bill.

Based on this research, and also research in Australia, I have no doubt that a law change to restrict RTDs to 5% strength would in fact lead to more alcohol induced harm, rather than less. Around half of RTD drinkers buy 6% to 8% RTDs, and if these were legislated out of the market, many of them would then purchase spirits instead so they can self-mix drinks.

The Law Commission itself warned of the dangers of targeting just one sort of alcohol, due to substitution issues. I would urge the Government and Parliament to take heed of the Law Commission advice on this issue.

Again, in summary, I would urge the committee to apply a filter to all proposed measures, measuring how effective it will be in reducing harmful drinking, and how much it will impact people undertaking non harmful drinking. We want measures that maximize the former and minimize the latter.

SUBMISSION OF DAVID FARRAR TO THE JUSTICE & ELECTORAL SELECT COMMITTEE ON THE CRIMINAL PROCEDURE (REFORM AND MODERNISATION) BILL

About the Submitter

This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

I am the owner and editor of kiwiblog.co.nz, a blog which attracts hundreds of comments every day from close to 7,000 commenters. Some commenters have broken name suppression orders on my site, and a considerable amount of time is spent on detecting and deleting any breaches.

Executive Summary

This submission is focused on the provisions around name suppression and the Internet.

I believe name suppression orders have been too easy to obtain, and support the provisions of the bill which make it harder for name suppression to be obtained.

In the Internet age, it is very difficult to keep things secret, if there is a public interest in them. Wikileaks is a classic example of this – the US Government couldn’t stop publication of some of its most classified secrets. So the NZ Government will not be any more successful in stopping publication of defendants details if someone strongly enough wants to publish them.

Websites with no NZ connection (ie not hosted in NZ, and no known author/owner in NZ) can public suppressed details with no comeback under NZ law.

The bill proposes an offence for ISPs (which are defined as including bloggers) who do not delete any content which breaches a name suppression order. I am unsure as to the need for this, as I believe a failure to delete any content (once notified of it) is already an offence. This is why I have deleted comments which do breach suppression orders.

If there is to be a specific offence for ISPs, then significant changes need to be made to it to protect content hosts from being jailed for material they were unaware of. I detail these later on

I support the creation of a register of suppression orders for two reasons. The first is it would help media ascertain what is suppressed – something which can be challenging currently. Secondly it would allow publishers to verify if material on their site is in breach of an order, so it can be taken down.

Clause 214 – Standing of members of media

Clause 214 restricts standing on a name suppression application to media who are subject to the BSA or Press Council. Unlike c202(2)(b) which caters for other persons reporting on court proceedings, c214 has no exceptions.

I do not believe it is necessary to have any restriction on whom may be heard in relation to a name suppression application. It is highly unlikely anyone would seek to be heard whom doesn’t have a legitimate interest in the issue. They might be an online publisher like Scoop, a student newspaper such as Salient, or even a transparency in government foundation.

If standing is to be restricted to “media”, then it would be desirable for the courts to have the flexibility (as in 202(2)(b)) to recognize a wider range of media

Clause 215 – Offences and penalty

The maximum term of imprisonment of six months is excessive, especially as it may apply to publishers who do not knowingly break a suppression order but merely are found not to have detected and deleted a breach. A possible penalty of jail is excessive – even though this applies only to breaches of victims identities.

Clause 216 – Liability of ISPs

Clause 216(2)(a)(i) states an ISP is liable for any breaches done by their users if they “knows or had reason to believe” the material is breaching a suppression order. This is far too uncertain a test for an issue of criminal liability. The test should be as per the Law Commission recommendation “that they know”.

Clause 216(2)(a)(ii) also removes liability protection if an ISP “does not, as soon as possible after becoming aware of the infringing material, delete the material”. It is important to define what constitutes awareness of the infringing material. Having someone merely tell you that there is infringing material somewhere on your site should not be sufficient to remove liability. You need to be aware of the specific page or URL it is on.

Clause 216(3) says the a court in determining liability must “take account of all relevant matters, including whether the Internet service provider has been notified of the alleged breach”. It does not define whom can do the notification. Ideally notification would be by way of a notice and takedown regime as proposed by the Telecommunications Carriers Forum. Before an ISP removes material, they need to have the assurance that it is someone in authority asking them to remove the material. Either Crown Law, the Ministry of Justice, the Police or even Judge’s Registrars could be deemed the appropriate authority to issue such takedown notices.

Clause 216(4) requires an ISP to notify a user if it has deleted material which is suppressed. This is not practical for bloggers (who are defined as ISPs under this bill) as many of the commenters are anonymous. It is desirable to say that notification should happen, only if practical.

It would be useful to use an alternate term such as a “content host” rather than ISP for the purposes of this section. Defining persons who host material on websites as an ISP will just lead to confusion between different Acts.

If significant changes are not made to these provisions, ISPs and Internet publishers (such as myself) could face criminal liability despite our best efforts to obey the law. The Government needs to make it was easy and clear as possible for Internet publishers to know if material on their site infringes, to locate that material and to remove it secure in the knowledge that the request to do so has come from an authorized agency

SUBMISSION OF DAVID FARRAR TO THE
INQUIRY INTO THE 2010 LOCAL AUTHORITY ELECTIONSBY THE JUSTICE & ELECTORAL SELECT COMMITTEE

About the Submitter

This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

Management of Elections

With the establishment of an Electoral Commission that manages all aspects of our national elections (including enrolments in the future), I believe it is timely to consider whether the Electoral Commission should be given authority over our local authority elections.

Purely on a cost basis, I imagine there would be considerable savings as 70 odd TLAs all have their own systems, or pay an external provider for them.

More importantly, the Electoral Commission would add extra integrity to the elections. By this, I do not mean there are serious problems at the moment, but current returning officers are often staff of local authorities whom naturally form working relationships with current Mayors and Councillors etc.

I do not ask the Select Committee to agree immediately to place the Electoral Commission in charge of local authority elections, but to request the Government to seek advice about the pros and cons of doing so.

Making an informed decision

It is of concern that turnout for local body elections is very low. Even worse, of those who do vote – few cast what most would consider to be highly informed votes.

In making such a statement, I offer myself up as an example. I follow news and politics more than probably 99% of the population. But even I struggle with knowing who to vote for on my local District Health Board, or how to rank all the candidates in my local ward

Many people get elected to office based either on their ability to write a nice 200 word blurb, or based on the spelling of their surname.

Recommended Solutions

That ballot papers be required to be in random order.

Recognising that trying to select or rank dozens of candidates for multiple vacancies is difficult and off-putting, that the Local Government Commission be encouraged to move towards smaller wards – even one person wards. I think more people would vote, and have confidence in their choices, if they had to just pick one Councillor from their local neighbourhood (as well as a Mayor).

The principle of smaller wards should also apply to Regional Councils and DHBs. Having their wards as TLAs, means that you ask voters to do the near impossible – intelligently rank 30 – 40 candidates, or even select 7+ persons.

Having both STV and FPP in use at local body level is somewhat confusing. STV is excellent for single vacancy elections such as Mayoralties, but I find it very offputting for multiple vacancy elections due to the high number of candidates. If there was a move towards more single vacancy elections, then STV would be more widely supported I believe.

That e-voting be trialled in the 2013 local body elections in a few areas. I believe e-voting could lift voter turnout, and also help with more informed voting as the online ballot could have links to (longer) blurbs on each candidate, or even candidate websites.

SUBMISSION OF DAVID FARRAR
TO THE ELECTORAL LEGISLATION SELECT COMMITTEE
ON THE ELECTORAL (FINANCE REFORM AND ADVANCE VOTING) AMENDMENT BILL

About the Submitter

This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

I have over 15 years experience with the Electoral Act. As a former parliamentary staffer I advised National Prime Ministers and Opposition Leaders on the Act. I have been an electorate campaign manager and a national campaign staffer, requiring intimate knowledge of the Act. I also have blogged extensively on electoral issues.

Executive Summary

I support the Electoral (Finance Reform and Advance Voting) Amendment Bill as it is an improvement upon the status quo.

I am disappointed that the bill does not go further in reforming our electoral finance laws. Specifically I believe that the broadcasting allocation needs significant reform, and the electorate spending limits are unacceptably low.

However I accept the wisdom of the Government’s position that no major changes from the status quo will be included, without widespread parliamentary agreement. Effectively the Government has given a veto to the Labour Party over what changes were included in the bill.

I believe it is highly desirable that there be widespread consensus on electoral laws. They should not be something for an incumbent Government to unilaterally change, as the ultimate prize in a winner takes all regime. For this reason, I somewhat reluctantly accept that there will not be broadcasting reform unless the Labour Party agrees to it – even though National and ACT who both support it could reform it by themselves.

It is my hope that the consensual approach taken by the Government, and specifically the Minister of Justice, is adhered to by future Governments. Just as a National-led Government has given the Labour opposition a veto over major reform, the implicit assumption is that a future Labour-led Government will do the same, and we will never be treated to a process such as we saw with the Electoral Finance Act.

I obtained cabinet papers relating to this bill from the Ministry of Justice under the Official Information Act. One of the options in those papers was a significant reform package which did reform the broadcasting regime and increase spending limits, but also imposed spending caps on parallel campaigners and lowered the donation disclosure limit.

That package is one I believe to be slightly superior to the consensual package that this bill is based on. It would have delivered two extra reforms that broadly speaking those of the right tend to have wanted (higher spending cap, broadcasting reform) and two reforms that broadly the left wanted (lower donation disclosure threshold, parallel campaigner spending cap).

I would urge committee members to consider a more significant balanced reform package, if it has concessions from both “sides”. For example while I am strongly against parallel campaigning spending limits, I would be prepared to compromise on that if it meant that the broadcasting regime was reformed to allow parties to buy their own broadcasting.

Regulated Period

The proposed S3(B) defines the regulated period as starting the day after the default day, which will be three months before the last possible day an election can be held. There are exceptions for when an election is called early.

I believe it was the intention of the Government to avoid the problem of retrospectivity in the current law (which is highly desirable), but the solution they have come up with has consequences that would in most cases dramatically shorten the regulated period. This is because the last possible date an election can be called tends to be six to seven weeks after the previous election.

For example the last practical date for the next election is 7 January 2012. This means the regulated period would only start on 8 October 2012, and if the election was at the traditional late November date of 26 November 2011, the regulated period would be 49 days –almost half the normal three months. There was no policy consensus on shortening the regulated period like this.

The best solution to the issue of the regulated period would be to have a fixed election date, being the last Saturday in November every third year. This would allow the start of the regulated period to be known well in advance. It would also remove the tactical advantage an incumbent PM has in setting the election date, and stop snap elections on dubious grounds such as in 2002 and 1984.

If a fixed election date is not adopted, then I recommend two principles be applied to setting the regulated period. They are:
(1) The regulated period should never be retrospective
(2) The regulated period should, where possible, be around three months

I can testify with first hand experience the grave difficulties one can have as a campaign manager, when you do not know the start date of the regulated period until you are halfway through it. It is very important it never be retrospective. Now that it seems likely that the regulated period will also apply to the definition of MPs parliamentary advertising, I am hopeful this principle will be accepted.

I believe the law should be based on what will be the normal experience – an election held three years after the last election, hence the start of the regulated period should be two years and nine months after the previous election.

If an election is held early, then the regulated period should start from the day after the PM announces and gazettes the election date.

If for some reason the PM announces the date of the election more than three months before the general election (which may happen to avoid a by-election), then it should start from three months out.

Sometimes an election is more than three years past the previous election. This allows elections to move back to their normal November date, after an early election. In these cases the regulated period will be a bit longer than three months.

I have attached a table as Appendix A, which shows how long the regulated period was, or would have been, for every election since 1981 under the existing law, the bill, and my proposal. The average number of days in the regulated period under the bill is 64 days. The status quo is 92 days and my proposal 108 days.

This proposal can be implemented by amending the proposed S3B(5) so that it reads “default day means the day that is two years and nine months after the last general election”, and deleting S3C.

Meaning of election advertisement

I propose two amendments to the exclusions from election advertisements in s3A(2).

I propose that s3A(2)(b) have the word “solely” replaced by primarily” in relation to the purpose of a news item being for informing, enlightening or entertaining readers. A test of “solely” is too restrictive and could result in newspaper editorials being classified as election advertisements.

I also propose that s3A(2)(e) have the words “on a non-commercial basis” deleted. The intent of the section is to exempt people such as bloggers from being required to register as a promoter for merely stating their personal views. The test of “personal political views” is sufficient in my opinion to exclude someone being paid to promote someone else’s views. The additional requirement of non-commercial is not defined, and could catch a blogger such as myself who receives a modest amount of advertising income through their blog

Candidate’s Election Expenses

The limit on candidate election expenses should be set high enough so that a candidate can effectively communicate to the voters in their electorate, and low enough to stop a candidate from being able to gain an unfair advantage through dominating the local media.

My experience in 2005 is that the limit of $20,300 is far too low to allow a candidate to do even basic communications with the voters. It is less than 50c per adult in the electorate. Excluding GST it will be only $17,650 or around 40c per adult – not even enough to send a single direct mail letter.

This is hugely disadvantageous to candidates standing against incumbent MPs, as the incumbent has the benefit of parliamentary profile and resources.

I would urge the committee to ask officials to obtain specialist advice on what would constitute a reasonable electorate campaign for three months. For example it could be two direct mail letters, two unaddressed pamphlets, six quarter page ads in community newspapers, 50 hoardings, and one billboard. The spending limit should be set based on empirical costings at a level to allow the agreed upon activities. That limit should then be inflation and population adjusted.

If the committee is not wanting to empirically cost what an electorate campaign should consist of, at a minimum I would ask that the limit be increased to take account of inflation since 1993. That would move the limit to $29,000.

Party’s Election Expenses

I note the limit for political parties has also not increased significantly since the early 1990s, despite inflation of 27% and population growth of 14%.

I support the proposal to inflation adjust the limit going forward. I believe it would be prudent to also population adjust it. Campaign costs do increase with population.

I also believe that it would be beneficial to increase it to take account of the inflation and growth since 1994. This would suggest a limit for a party contesting all electorates of $3.5 million.

Liability for political parties

I would ask the committee to consider allowing political parties to be held liable for breaches of the Act, not just individuals such as party secretaries.

The current law has, in my opinion, encouraged disregard for the law, by making sure those liable are kept in the dark about certain bank accounts and trust funds. We saw this reported in 2008 with regards to the NZ First Party where the poor old party secretary was in the gun for donations and transactions she knew nothing about.

Donations

I am pleased to see the requirements for parties to disclose their total amount of donations, in bands, as this will give greater transparency. I was one of those who proposed this during the policy review.

It would be desirable to make clear in the proposed s6A that the “total amounts” to be disclosed in bands are the total amount of money donated, not the total amount of donations made.

The current law on donations was only put in place in 2008, and has yet to go through a full electoral cycle. I think it would be premature to make conclusions on its adequacy or inadequacy until we have the benefit of a full cycle to review. It would be useful to have a full review after the 2011 election.

Parallel Campaigners

The requirement for those who spend over $12,000 on election advertisements to register with the Electoral Commission is a useful transparency measure. The Electoral Commission should ensure it has full contact details of an individual representing the promoter, including their full name, address and phone number.

I do not believe there needs to be a spending cap on promoters. Apart from the fact it would be trivial to get around, it may actually encourage higher spending campaigns as a cap can become a target – as it has for political parties.

The public, assisted by the media, have shown themselves very capable of deciding how much value to place on an expensive advertising campaign funded by particular individuals or groups.

Sometimes there may be sound public policy reasons for a promoter to spend a lot of money on election advertising. If for example a political party passed a law confiscating property off a group of citizens. They may have had the Government rob them of $100 million of assets. They should be entitled to spend say $200,000 to campaign against the party that did that.

Take another scenario. What if the Crown confiscated land or property rights off an Iwi, as they have done in the past. That Iwi might want to campaign against the party in Government which stole their land or property rights. Do we believe it would be a good thing to prevent an Iwi from campaigning against a party that legislated away its rights?

General

I was one of the “overseas experts and interested parties” who met in Wellington on 14 May 2010 to consider improvements to the bill. A joint submission was filed on our behalf by Andrew Geddis. I endorse the recommendations made in that submission..

I think the process lading to this bill has been excellent, with both a discussion paper and a proposal paper, and then a bill. I would urge this to become the standard process for future electoral finance reform.

While not a major focus of mine, I do support the provisions allow advance voting without needing to justify why.

In summary I urge the Electoral Legislation Committee to recommend the Electoral (Finance Reform and Advance Voting) Amendment Bill be passed, with amendments as proposed.

Just finished this submission. Now working on my electoral finance one. Curses they both close today.

SUBMISSION OF DAVID FARRAR
TO THE COMMERCE SELECT COMMITTEE
ON THE COPYRIGHT (INFRINGING FILE SHARING) AMENDMENT BILL

About the Submitter

This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

I appeared before the Committee in 2007 on the Copyright (New Technologies) Amendment Act 2008 where the removal of S92A of the principal act was advocated, and agreed to by the Committee. It was later reintroduced at the Committee of the House stage.

Executive Summary

I support the Copyright (Infringing File Sharing) Bill as a huge improvement on the current S92A of the Copyright Act.

I believe the provisions allowing for suspension of a person’s Internet account should be deleted as an unproportional response, and a bad precedent.

There are a number of other desirable amendments to the bill, which would in the main be considered technical improvements.

I urge the Committee to try and obtain quality research on the level of economic damage caused by personal non-commercial file sharing, and whether the proposed tribunal regime is justified in terms of the taxpayer investment into its costs

The overall bill

I congratulate the Government, and especially Commerce Minister Simon Power, for his response to the problems highlighted by S92A.

The policy consultation and development process was robust and inclusive, and the policy outcome as laid out in this bill is generally well balanced. This was reflected in the unanimous support for this bill at first reading.

The critical features of this bill are
* that the law will no longer presume guilt upon accusation
* ISPs do not have to act as a judge in any disputes
* rights holders gain the ability to send notices to alleged infringers
* users have their privacy protected
* ISPs can charge a fee to reflect the cost of processing and data matching infingment complaints

* That any tribunal action can only happen after ongoing alleged infringing

Suspension of Internet Access as a penalty

I appreciate that the bill has considerable safeguards around the provision to allow suspension of an Internet account – specifically that the power is reserved to the Court, not the Tribunal, and that the circumstances in the proposed s122O(3) must be taken into account.

However I believe that it would be a very bad precedent to pass a law which has suspension of an Internet account as a penalty.

The Internet is a utility, much like power, water, and phone. It has become essential to many New Zealanders, and in fact the Government itself requires certain transactions to be done online, such as company annual returns.

If someone grows cannabis plants in a heated glasshouse at home, we do not give the courts the power to suspend their electricity account for six months. We charge them for the offence.

If someone sends a threat by fax machine to the Prime Minister, we do not give the courts the powers to suspend their phone line for six months. Instead we charge them for the threats.

Even with other highly undesirable activities on the Internet, we have not given the courts the power to suspend or terminate an Internet account. Many would agree the worst material on the Internet is child pornography. If someone is convicted of trading in child sexual abuse pictures, they may get sent to jail, or fined. But the court does not have the power to suspend or terminate their Internet access.

For what is a civil, not even a criminal, offence of copyright infringement, a punishment of Internet access suspension is grossly disproportional.

While it is unlikely to be used often, it would set a very unhealthy precedent.

I recommend that the Committee delete the proposed sections122O and 122P. Also a consequential deletion of S122Q(2)(e)

Other Amendments

In s122Q(4) the date “31 September” should be replaced with “30 September”

Also in s122Q(4) I would propose that rather than require ISPs to publish compliance statistics on their own websites, it would be more useful for the purpose of analysis to have them submit the statistics to a government agency (probably MED) and have the statistics published in one central location.

A number of other technical amendments are detailed in the submission by InternetNZ, and I endorse those proposed changes.

Research on economic damage

At the 2007 select committee hearings, I recall music industry representatives talking about how the failure to pass that law would lead to artists like Bic Runga having to flip burgers at McDonalds so she can earn enough money to live on.

Some rights holders produce reports stating that the economic damage is in the billions, assuming every single download of a “work” is a sale that would have otherwise occured. This ignores the fact that many downloaders “try before they buy”, or in other words download to see if they like something, and if they do then purchase it legally. This is not to condone such acts, but to point out that the assumptions over economic damage are unwarranted.

In Australasia, the most recent stats (from the Int Assn of the Phonographic Industry) show that music revenues are up 3.5% (physical sales down 2.4%, digital sales up 41.4% and performance rights up 8.6%) in 2009. Also APRA reported that in 2008/09 distributions to music creators increased by 10%

In the movie industry, global ticket sales were up 7.6% in 2009, during the worst recession in 70 years

Again, this is not to condone illegal file sharing, or to suggest it is of no consequence. But to put the claims of industry groups in proportion.

In giving the Copyright Tribunal a mandate to hear file sharing infringement claims, Parliament will be investing many hundreds of thousands of dollars into the Tribunal so it can do this work.

It would be prudent for members of the Committee to ascertain that they have sufficient quality research on the economic damage caused by non-commercial personal file sharing, to justify the investment of taxpayer dollars into the Copyright Tribunal’s expanded mandate.

An alternative is to do what Canada and the UK have done, and to simply implement a notice and notice regime, which research has shown will deter 70% of file sharers), and evaluate how that regime works, before deciding on the need for the Tribunal.

In summary I urge the Commerce Committee to recommend the Copyright (Infringing File Sharing) Amendment Bill be passed, with appropriate amendments.

SUBMISSION OF DAVID FARRAR
TO THE LAW AND ORDER SELECT COMMITTEE
ON THE ELECTORAL (DISQUALIFICATION OF CONVICTED PRISONERS) AMENDMENT BILL

About the Submitter

This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

I have a long standing interest in the Electoral Act and have written extensively on it.

Executive Summary

I support the Electoral (Disqualification of Convicted Prisoners) Bill as it provides for a more logical threshold, in disqualifying convicted criminals from voting.

Overseas exceptions to suffrage

Amongst the democratic countries, there is no clear policy or threshold at which those convicted of crimes lose or do not lose their right to vote.

Some counties have no disqualification at all. Even the worst serial killers and gang rapists are allowed to vote from prison, despite serving a life sentence.

Other countries (or states within countries) have laws which prohibit not only current prisoners from voting, but maintains a ban on voting, even after they have been released

Some countries, like Australia and currently New Zealand, have a ban which only applies for sentences of three years or more.

Countries which have a total ban on prisoners voting are the United Kingdom, Ireland (de facto), Luxembourg, Estonia, Romania, Russia, Hungary and the Czech Republic. Also 48 of the 50 states of the United States (covering 99.4% of the population) ban prisoners from voting.

Where should the line be drawn?

I do not believe there is any clearly right answer to where the threshold should be. Arguments can be made for any number of scenarios, which range along a continuum.

Below I have listed, in approximate order of severity, some of the options open to a country in terms of restrictions on criminals voting.

No restrictions at all.

Those serving a life sentence can not vote

Those sentenced three or more times to prison lose the right to vote while in prison (three strikes and no vote)

Those sentenced to x years or more lose right to vote while in prison (status quo of three years)

Those sentenced to prison can not vote while in prison (proposal of Bill)

Those sentenced to any form of custody (home detention, periodic detention) can not vote while sentence is underway

Those sentenced to prison can not vote while on prison or on parole

Those sentenced to prison can not vote while in prison and for x years after release

Those sentenced to prison are permanently disqualified from voting

Those convicted of any crime can not vote for x years after sentencing

Those convicted of any crime are permanently disqualified from voting

Starting at the least restrictive end of the scale, I believe having no restriction at all is highly undesirable. The like of Graeme Burton and William Bell have forfeited their right to vote, just as they forfeited their freedom of movement.

A case could be made that only those with life sentences be ineligible to vote, on the basis they will never re-enter society. However with parole a life sentence is not for life. This undermines the logic of restricting it to life sentences only.

The status quo is that only those sentenced to three or more years lose eligibility to vote. The problem I have with the status quo is that three years is very arbitrary. If you get sentenced for 2 years and 11 months you retain your vote, and one month more and you lose it.

The status quo also has the problem of defending why three years is the right dividing line. Why not four years? Why not seven years? Why not one year?

This then brings us to the proposal in the bill. For the ban to apply to any criminal in prison. I believe this to be less arbitrary and a superior dividing line.

A Judge does not sentence someone to prison lightly. They will in fact go out of their way to have prison as a last resort. Many criminals have dozens or scores of convictions before they actually get a prison term. Prison is regarded as reserved for either the more serious offences or repeat offenders.

Hence having voting rights disappear upon prison sentence strikes me as a more logical threshold. It is the threshold at which a Judge says that someone’s offending against society is so bad, that we have no choice but to remove their liberty and lock them in a cell.

I also believe that the right to vote is part of a person’s liberty, and it is quite consistent to lose that right upon going to prison – just as you lose the right to free speech, to freedom of movement, to freedom of what you watch, to freedom of sex, to freedom of meal choice etc.

On a practical note, it also means that it is easy to administer – no polling facilities or special vote facilities are made available in prison. No needing to work out which prisoners can or can not vote.

As I said earlier, there is no clearly right place to draw the line. Arguments can be made for or against most of the options I have outlined above. However I believe the preferred option is to link it to imprisonment, as this bill does.

In summary I urge the Justice and Electoral Committee to recommend the Electoral (Disqualification of Convicted Prisoners) Bill be passed.